Mass Atrocity, Mass Testimony, and the Quantitative Turn in International Law

Abstract

The article identifies and analyses the development it labels the “quantitative turn” in international criminal law. Addressing the cumulative effect of the large numbers of witnesses in international processes, the article considers quantity as an integral, and substantively beneficial, component of the law's response to atrocity crimes. The article develops a theorized understanding of the relationship between mass atrocity and mass testimony and provides a taxonomy of the functions that the quantity of testimonies fulfills in international trials: the evidentiary, didactic, epistemic, and restorative functions. Focusing on a recent case before the International Criminal Court in the matter of The Prosecutor v. Bemba, the article demonstrates how the different players in the international justice system—Prosecution, Defense, Victims, and the Court—employ the functions of quantity, while negotiating concerns over manageability and scale. The goal of this article is to prompt a debate and a more careful consideration of the potential benefits of a meaningful participation of witnesses and victims in post‐atrocity proceedings. This is particularly important given the dominance of the efficiency paradigm in international criminal law (ICL) discourse, which directly impacts the quantitative turn. The article forges new ways for ICL institutions to maintain a plurality of voices and their commitment to victims while safeguarding the rights of the accused.

Liberal international criminal law and legal memory: deconstructing the production of witness memories at the International Criminal Tribunal for Rwanda

“…Combs fails to acknowledge the important role that legal culture and practices of the ICTR had in shaping the testimonies of witnesses (Eltringham 2019: 137). Scholars who analyse legal witnessing through the lens of legal and human rights norms argue that they contribute on an individual level by enabling witnesses to come to terms with the past (Kim 2013: 40, Klinkner & Smith 2015 and at a collective level through the compilation of witness testimonies facilitating a collective memory of mass violations (Keydar 2019). Groome argues that, on an individual level, there is a need to position individual victims of mass human rights violations at the centre of legal responses to atrocities, transitioning victims from passive sufferers of violence to active participants in processes of redress (Groome 2011).…”

“…In the context of the claim that the ICTR can produce a collective memory of past violence, Ricoeur's concept of the plurality of memory allows the article to critique this claim (Klinkner & Smith 2015, Keydar 2019. The ICTR produces a narrow and singular memory for the specific purpose of reaching a legal judgment.…”

“…This fixation has consistently lacked understanding and engagement with societies experiencing periods of transition, which has often led to a negative rather than positive impact on those that international justice is purportedly aiming to help (Igwe 2008, Nyawo 2017, Clark 2018. Advocates of international criminal justice as the most suitable response to atrocities and/or conflict in Africa commonly claim the scope of international criminal law to contribute to societal transformation (Kendall 2015, Keydar 2019. The crux of this claim is that international criminal courts and tribunals have the ability to go beyond the essence of what courts are there to do, that is reach a legal determination of guilty or not guilty, and can also contribute to reconciliation and peace (Igwe 2008, Keydar 2019.…”

“…Advocates of international criminal justice as the most suitable response to atrocities and/or conflict in Africa commonly claim the scope of international criminal law to contribute to societal transformation (Kendall 2015, Keydar 2019. The crux of this claim is that international criminal courts and tribunals have the ability to go beyond the essence of what courts are there to do, that is reach a legal determination of guilty or not guilty, and can also contribute to reconciliation and peace (Igwe 2008, Keydar 2019. These lofty and idealised aims of international criminal law include contributing to producing a collective understanding of the past through the testimonies of witnesses.…”

Technology as a Key Tool for the Prosecution of International Crimes: Lessons from Uganda

“…Such evidence would also be easier for the prosecution to collect. Since quantity does not necessarily equate to quality, 53 it is important for the prosecution to gather the most relevant evidence, as outlined under the RPE. 54 Another technological tool in the Ongwen case relates to the use of video links for prosecution witnesses.…”